UK Family Law Reform

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Family courts are the B-side of the law

Camilla Cavendish 21st December 2006

What a strange, fumbling kind of justice system it is that condemns a woman as an unfit mother for the heinous crime of trusting her husband. Yet this is what seems to have happened in a recent case that I feel compelled to write about, even though legal restrictions force me to leave out much of the detail.

The nub of the case is this. A woman, let us call her Janie, gave birth to her first and only child a year ago. That baby was taken away from her and subsequently put up for adoption. Not because of her own failure to care for the baby — her own love and care never seem to have been in question. No. She has lost her baby because of a suspicion that her husband John may have injured another child in his previous marriage almost ten years ago.

The suspicion was no more than that. John was never charged with anything, let alone convicted. Social workers were never sufficiently worried to take that first child into care. Since his divorce John has shared custody of that child perfectly amicably with his ex-wife. Yet the same local authority which left the first child with him has forbidden him to see this new baby. And his new wife, despite having nothing to do with the first case, may never see her baby again.

Unless this case is overruled in the European Court of Human Rights (ECHR) in Strasbourg, where it is now heading, it will set a peculiar precedent. For it implies that any British mother could be penalised for choosing a partner to whom the State has taken a dislike: penalised with the loss of the thing that is most precious to her in the world.

It cannot be this simple, you are thinking. Well, not quite. The child of the first marriage is disabled, and did seem to have suffered an injury — I am not permitted to say more. But no one knows how. Both John and his first wife have always protested their innocence. They had a second child who came to no harm. No court will ever truly know whether John was innocent. But the fact is that he was never found guilty. For the local authority to leave him alone with a child that it thought he had harmed, and to take away another that had not been harmed, is utterly hypocritical. No court should be able to punish you for a crime you may commit, when there is no evidence.

It should, surely, be a crime to remove a newborn baby from a mother who has never harmed it.

For that in itself is a form of abuse. Yet the secret State often chooses to abuse the children itself, rather than let them run the risk of staying put. They are at least alive, it calculates, even if it is a diminished kind of alive, deprived of the mother bond. And too often, it strikes the wrong balance. In 2002, the ECHR ruled against the British Government for removing a new baby from its mother in hospital and refusing even to let her cuddle it under supervision, when there was no evidence that the baby faced a serious risk at that time. The judgment came too late, though. The baby had already been adopted.

This is what Janie fears. The ECHR has agreed to hear her appeal and to consider whether the English court ruling breached Janie and John’s right to family life, to freedom of opinion and to freedom of expression. That is quite a ticket. But even if the ECHR finds in Janie’s favour, it may be too late. The local authority is already seeking families to adopt her baby. Her only hope is that prospective adopters will be put off by knowing of her appeal.

Any lawyer will tell you that family courts are the B-side of the legal system. The majority of judgments will never be read outside the courtroom. Perhaps judges fear the consequences if they do not support social services and social services are later proved right. They seem to start from the assumption that children are de facto wards of court who need protection from their parents.

Even then, Janie’s case seems extraordinary. Certainly the parents are not the brightest people in the world. They are not perfect. But the more I learn about it, the more I believe that Janie and John’s biggest mistakes were emotional. Janie seems to have been very co-operative. However, John has been irritable, even aggressive, which would support the view that he has a violent nature. But can you really convict on that basis? Which of us could control our temper if faced with losing a child to a bunch of hypocrites? In a Hollywood movie, anger is a natural reaction to injustice. In an English suburb, defiance makes you guilty. The legal system wants “remorse”. But how can you show remorse for something you haven’t done?

Until this case I had tended to be sceptical about the claims that the Government’s targets for adoption were leading to miscarriages of justice. I still feel that ministers were right to want to speed up adoption and to release more children more quickly from the hell of care. But I have now started to take more seriously the argument that these targets have created a perverse incentive for local authorities to take more babies into care. Babies are, after all, more attractive to prospective adopters than older children and therefore an easy way to reach those targets. In Janie and John’s case, you do have to wonder why the authorities have rushed to take away a healthy baby, when they did not take away a disabled one.

Janie’s case seems to me to make a strong argument for introducing juries. Why is a burglar facing six months in jail allowed to ask for a jury trial, but a mother facing the irretrievable loss of her only child is not? Mistakes will always be made when the ordinary, imperfect citizen is judged by the imperfect and powerful. Personally, I would rather face 12 men good and true.

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